Archive for For Professionals

Civility Lesson for Attorneys: Be careful which adjectives you use when describing a member of the profession.  It may not be taken well!

Calling a woman judge – now an Associate Justice of this court – ‘attractive,’ as Chow does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist.In this day of #MeToo, one lawyer learned this lesson the hard way when he received a public hand slap from the Court of Appeal of the State of California because of “highly inappropriate” rhetoric he chose to employ in his appellate brief on a defamation case, Briganti v. Chow 19 DJDAR 10941 (11-22-19) (DCA 2).

The attorney wrote referring to the trial judge, Gail Ruderman Feuer (now an Associate Justice of the very appellate court in question),

“Briganti … claims that … Chow defamed her by claiming she was ‘indicted’ for criminal conduct, which is the remaining charge [in this case] after the [trial judge] … an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench, ruled for Chow granting his anti-SLAPP Motion to Strike Respondent’s Second Cause of Action but against Chow denying his anti-SLAPP Motion against the First Cause of Action …. With due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err!  Let’s review the errors!”

Teachable Moment

I’m not sure whether this particular attorney found this a humorous piece of rhetorical genius or what he was trying to do, but the Court of Appeal took it as an opportunity for a “teachable moment.”

 

Said the Court, “Calling a woman judge – now an Associate Justice of this court – ‘attractive,’ as Chow does twice at the outset of his reply brief, is inappropriate because it is both irrelevant and sexist.  This is true whether intended as a compliment or not.  Such comments would not likely have been made about a male judge.”

Citing the California Code of Judicial Ethics, canon 3B(6)(a), the Court wrote,

“The California Code of Judicial Ethics compels us to require lawyers in proceedings before us ‘to refrain from … manifesting, by words or conduct, bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation …’  That goes for unconscious as well as conscious bias.”

In conclusion, the court extended its “thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.  Good brief-writing requires hard work, rigorous analysis, and careful attention to detail.  Moreover, we recognize ‘every brief presents opportunities for creativity—for imaginative approaches that will convey the point most effectively.’ We welcome creativity and do not require perfection.  We simply did not find the peculiar style and content of this brief’s opening paragraph appropriate, helpful, or persuasive.”

Ouch!

The Court cares about civility in practice.

What’s the moral to this “teachable moment”?  Simply, the Court cares about civility in practice.  Practitioners need to be very careful to avoid – even if it is intended as a compliment – using language that may objectify or demean a member of the profession, particularly if the language invokes gender, race, sexual preference, gender identity, or other similar characteristics.  Being creative or cute in a demeaning way can lead to professional discipline.

disrespect cut to look be respect

Be respectful in practice.

 

 

 

Practice Tip: Be careful about the Health Insurance Deduction in DissoMaster!

financial calculation

We see many experienced family law specialists make this common DissoMaster* mistake with the health insurance deduction.

When entering the Health Insurance deduction in DissoMaster,* be sure to drill down.  There are three options and they make a difference: “paid by party”, “pre-tax wage deduction” or “wage deduction.”  Getting it wrong can make a significant difference in the calculation.

Paid By Party

“Paid By Party” is for premiums paid by the party directly to the insurer after the Premium Tax Credit (PTC).  This includes the advance PTC.  Typically, this is used for self-employed individuals who pay their premiums directly to the insurer.  Per the DissoMaster user manual, “[t]his is an income adjustment or an itemized deduction and a guideline deduction.”

Pre-tax Wage Deduction

“Pre-tax Wage Deduction” is for an employee’s health insurance contributions that are deducted pre-tax from the paycheck by the employer.  This number affects the calculation for adjusted gross income and is also a guideline deduction for child support.

Wage Deduction

“Wage Deduction” is for entering the portion of the health insurance costs that is withheld from a paycheck on an after-tax basis or amounts paid directly to the insurer by a salaried employee.  The software then treats the entire amount here as an itemized medical deduction, which would be on Schedule A.
dissomaster health insurance deduction screen shot

Screenshot from the DissoMaster software showing the Health Insurance data entry

See the DissoMaster user manual under “Health Insurance” for more explanation.

So don’t be a DissoMaster dunce!

If you get it wrong, it can make a big difference in the support calculation.  Make sure you are entering the health insurance payments correctly to ensure that you get the calculation right!
*DissoMaster is a trademark of The Rutter Group, a Thomson Reuters business. To purchase DissoMaster call The Rutter Group at (800) 747-3161 ext. 2 or visit CFLR for more information.

 

Seven Tips to Help Clients Prepare for Mediation

Hello I Am Prepared

Prepare for Mediation

So you have the big mediation date planned.  You hope the mediator will be able to work whatever magic she has so you can move the case to settlement and put the case to bed.  You’ve prepared yourself.  You know the law.  You have your arguments ready.  You’ve done your study of the facts.  But you forgot something crucial.  You forgot to prepare the most important person to your case—the person who actually has decision making power—your client!

Clients who prepare for mediation simply do better.  Client preparation significantly increases the chances of reaching a settlement.  Preparation is an often overlooked component of successful dispute resolution.  Importantly, clients are happier when they can settle outside of court.  So, here are seven tips to prepare your client for mediation.

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

#1: Make sure the client understands the mediation process.

To prepare your client for mediation, it’s important for them to be clear on what is expected of them in mediation, and what the role of the mediator will be.  Mediation is not court. It is not counseling or therapy.  It’s a negotiation facilitated by a third-party neutral.

The mediator is there to facilitate and to help people bridge their gaps from a neutral perspective. The mediator doesn’t give legal advice and doesn’t get a tie-breaking vote if the clients disagree.

All decisions are up to the parties to mutually agree.  Mediation does not require people to get along. A good mediator will facilitate the conversation and bring balance — even in cases where one party may be a better negotiator than the other.

#2: Educate your client on the relevant law.

It really helps if your client is prepared and armed with information.  This reduces the amount of time the mediator has to spend educating the client.  If they know what their rights are before they come, then they are more able to consider proposals for settlement.

Also, assure them no one will be expected to sign binding agreements without the advice of counsel. This goes a long way toward calming any fears of being “tricked” into an agreement.

#3: Prepare your client to manage emotional responses.

People come to their conflicts with a myriad of emotions.  Most of us, whether we admit are not, make most of our decisions through the lens of our emotions.  This is fine unless the emotions become so intense that we lose our ability to think rationally.  In divorce cases in particular, emotions affect almost all of the clients decisions.  Sometimes parties themselves in the difficult state of fight or flight and are unable to think clearly.  If left unmanaged, a negative emotion can make reaching accord much harder.

Consider mental health professionals to coach the client.

If you are like most attorneys, you have not been trained in psychology.  It’s good practice to know where your limitations are.  Why not involve a mental health professional to act as a divorce coach to prepare clients to prepare themselves emotionally for what might be a challenging meeting.

Help the client come up with strategies to stay calm to help with rational decision making.

Coach your clients on the importance of managing one’s own emotional responses.  It’s good to normalize coping tools such as taking a break or breathing.  If you are going to be there with your client during the mediation, come up with a signal, such as a keyword or a hand gesture, to indicate when a person is loosing it.  That way, when the signal is given, you can take your client outside to calm down.

A good mental health professional can even help the client come up with mindfulness tools to keep them grounded.  You want your client to bring his or her best self so that she or he can negotiate rationally.

#4: Make sure your client realistically understands their best alternative to alternative to a negotiated agreement (BATNA).

It’s common for a client to have unrealistic expectations about how good their case is.  They may believe that their case is a slam dunk and that all they need to do is get in front of a judge so that can explain their case.  Naturally, the judge will see it their way.

But we all know that such is not always the case.  In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase of the “Best Alternative to a Negotiated Agreement”  (BATNA for short). This is basically your client’s best case scenario if they end up in front of a judge.   A strong BATNA can empower decision making.

A client with an overoptimistic BATNA will make choices that put them at risk.  If they have a more realistic BATNA, it’s an important tool in negotiating a mediated agreement.  If a proposal is superior to your BATNA, then should take it.  Having a proposal that is worse than your BATNA will result in a person being less like to accept a proposal.

Be careful, however, that you as the professional also have a realistic BATNA.  I can’t tell you how often I have seen attorneys poorly advise their client because of an unrealistic BATNA.  They then go to court and sometimes get an unpleasant surprise.  So make sure you are thinking things all the way through yourself!

#5: Make sure your client realistically understands their worst alternative to a negotiated agreement (WATNA).

Fisher and Ury also teach us the phrase “Worst Alternative to a Negotiated Agreement” (WATNA for short).  Basically, the WATNA is the worst case scenario if your client ends up in court.  Sometimes a proposal is worth taking simply because it could be so much worse.  It’s a strategy of minimizing risk.

If your client is unrealistic about the worst case scenario and therefore has an uninformed WATNA, that can be very dangerous.  Your client may walk away from a deal that minimizes risk because he or she doesn’t understand how bad it can be.  Just like with the BATNA, make sure you are being realistic too.

I’ve seen a lot of attorneys advise their client not to accept a reasonable proposal only to go to court and do worse.  Client’s don’t love it when that happens- especially if they acted on your advice.  So, make sure you’ve got the BATNA right and be ready to move your BATNA or your WATNA once you get into the negotiation and learn new information.

#6: Get the client away from a fixation on things being “fair.”

Fair is the “F” word. Instead, focus on making a “good business decision.”

In negotiations, “fair” is largely meaningless.  What one person may define as fair may be worlds apart from what the other party defines as fair.  I find it best not to got there.  Fair is the “F” word in my conference room.

Rather, I coach my clients to leave “fair” behind and stretch for a good business decision.  If everybody is giving something up and a little disappointed, that means we are compromising… and that is GOOD.

Help your clients look for an agreement they can live with rather than an agreement that will conform to a mythical understanding of fairness.  Sometimes, the deal won’t ever be perfect.  But if you want your client to stay out of court, it may just have to be good enough.

See also: Why “Fair” is the F-Word in Divorce Negotiations

#7: Teach your client how to make realistic proposals.

He or she isn’t negotiating to get a bargain on a used car. It is a waste of time to offer terms pushing the extremes with the sole intention of pushing the other party to come closer a desired result. It is the road to frustration, mediation breakdowns, and a date in court in front of a judge.

See also: Tips on Making and Receiving Proposals

Download our free tip sheet to
make sure you have prepared
your clients for success in mediation.

Ways to Avoid Mediation Mistakes Too Many Lawyers Make

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

Neutral Private Settlement Conference

California Holds Facebook Rants In Custody Case Are ‘Free Speech’

facebook angerIt has been a long standing belief in family law: parents should not subject their kids to rants about a custody battle.

Judges have long constrained speech that would unnecessarily expose kids to the nastiness and details of the battle over who gets custody of the children between their  parents.

However, a new case issued by California Court of Appeal (Second Appellate District) seems to set a new boundary around what kind of speech the court can constrain.  It is particularly interesting given the new era of social media communication we live with today.

The case is Molinaro v. Molinaro 19 DJDAR 2709 (2-26-19) (DCA 2), certified for publication on March 28, 2019.

In this matter, a rather nasty Mr. Molinaro earned the privilege of receiving a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA).  The list of his hideous behavior included blocking his wife’s car in the driveway, threatening to throw a chair through the window if she didn’t unlock the door, and threatening to euthanize the dog.  A real charmer.

Mr. Molinaro also endeared himself to the court by arguing with the judge, calling him ‘insane.’  He was so hostile at court, bailiffs had to repeatedly admonish him to calm down.

Mr. Molinaro posting rants about his ‘unfair’ treatment in the case on his Facebook page. Among other things, he posted “about the divorce, about everything that’s happening.” His soon to be ex-wife testified he “posted to Facebook that [she] stole $250,000 from [their] home equity line, that [she] used it all and ran away with it.”  She testified, “He says that I am crazy and having hallucinations.”

Court orders parties not to post on Facebook about their case

To protect the children from being exposed to their father’s Facebook rants about the case, the trial court ordered “Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook posting [about the] subject case matter.”

Granting the wife’s application for a restraining order, the court ordered her then-husband not “to post anything on Facebook … in regards to this action … ”  In an attachment to the restraining order, the court ordered the parties “not to post anything about the case on Facebook” and “not to discuss the case with the children.”

Mr. Molinaro appealed the trial court’s order.

Facebook posts considered to be “free speech” per the court ruling

The appellate court upheld all of the provisions of the restraining order, except for the restraint on Facebook posting, finding it to be an overbroad and impermissible infringement on free speech.

The court held:

“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, we conclude the part of the order prohibiting Michael from posting ‘anything about the case on Facebook’ is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.”

The court further argued:

“’It is certainly in the best interests of the children of divorce that adults in their lives act in a mature and courteous manner’ [citation]; however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests.  The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test.  We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”

So, to sum it up, Mr. Molinaro is still a jerk.  But he can talk about it on Facebook.

 

 

 

 

Eight San Diego Mandatory Settlement Conference Prep Tips

I have learned what works for attorneys preparing for the MSC, and what doesn't. You can benefit from my experience with these eight tips.

I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

I have volunteered as a mandatory settlement conference (MSC) temporary judge in San Diego Superior Court for many years. I’ve also privately negotiated hundreds of settlement conferences. I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.

While I’m sure these ideas will work in any court-facilitated settlement program, these are written specifically with the San Diego family law practitioner in mind.

Take the meeting seriously.

Getting scheduled on the mandatory settlement conference calendar in San Diego County can take months. Settlement judges are volunteers and there aren’t enough to go around. A lot goes into assigning and calendaring your case.

Your client expects you to be ready for negotiation. He or she is paying you to prepare. You are doing your client a disservice and insulting the settlement judge if you are ill-prepared by wasting their time and money.

Many times in my role as a volunteer settlement judge, attorneys aren’t taking the meeting seriously. This is a lost opportunity for clients. Help your client find closure without the expense and trauma of litigation. If you still have to proceed to trial, perhaps you can at least solve some issues — the difference between a three-hour set and a three-day trial on the wheel.

Prepare a well-written brief.

When volunteering as a settlement judge, it can be disheartening to receive a flimsy ill-prepared brief full of typos, incorrect names, and out of date citations. It is simply unprofessional and could be malpractice. Your MSC brief needs ALL of the information you would take to trial. It’s poor form to make arguments or claims in the law unsupported by the evidence in your brief.

If documents are required to make your client’s Epstein claim or reimbursement request, you’d better have them attached to your written statement. If you don’t, an experienced attorney may successfully get it excluded when you bring it to trial.

Remember these key pieces of guidance from the MANDATORY SETTLEMENT CONFERENCE GENERAL INFORMATION sheet (form SDSC D-047 – Emphasis Added):

“All parties must be prepared to seriously discuss how they would be willing to settle their case.”

“The brief must include all the information required for a trial brief as set forth in the California Rules of Court, rule 5.394.”

San Diego rules encourage the use of the Mandatory Settlement Conference Brief-Long Cause Hearing Brief-Trial Brief (form SDSC D-241). Follow the form like a checklist to make sure you get the information into your brief you need or construct your brief of a pleading following the same format.

Meet and confer meaningfully before the MSC.

Don’t waste time – time is money in legal matters!

In San Diego, parties are not required to meet and confer before the MSC. But why wouldn’t you try? Maybe you could settle the case before wasting anyone’s time or money. It never hurts to talk about how far apart you might be. You may find more common ground than you thought.

If you can settle without an MSC, do it.

I participated in a conference not long ago where it was clear a simple phone call could have settled everything.  There was no need to put the parties through the expense of an MSC. The briefs showed the attorneys failed to meet and confer. The parties paid a lot of money for their attorneys to prepare and participate when a brief phone call could have done the trick. I scheduled an entire day of billable time to review the briefs and to participate as a settlement judge. Instead of billing their clients to prepare an MSC brief, they could have just prepared the MSA.  Now they are billing their clients for both.

Don’t schedule the MSC if you don’t intend to settle.

At several settlement conferences, it was clear there was never any serious intention to settle anything. The attorneys were punching their card so they could get a trial date. If it is clear a case can’t settle in a mandatory settlement conference, the judge may be willing to skip the MSC and set the case for trial immediately. The court doesn’t want to waste valuable MSC time either.

Be polite and professional.

You shouldn’t need a referee during a settlement conference! Be polite and professional.

Years ago, I was disappointed by the unprofessional behavior of two seasoned attorneys in a conference They refused to speak to each other or to sit at the same table. I even had the two parties come to me together and confide with a longing look on their faces how they didn’t understand why their attorneys refused to settle.  They asked if I could help. I was astonished, but I made the attempt. The attorneys struggled but finally managed to put their clients first and we concluded the case.

How embarrassing. No wonder people hate lawyers.  Do us all a favor.  Check the bad behavior, the grandstanding, and the aggression at the door, and help your client settle.

Prepare your clients for compromise.

Meriam-Webster defines compromise as “to come to agreement by mutual concession.” For there to be a compromise, both parties need to give a little.

Going to court has inherent risks. You may think your client has the mythical “slam-dunk” case. There is no such thing. The case may not go exactly as you thought.  In family law, judges have a lot of latitude and discretion. Help your client understand that the risk of going to trial, even if you think the law supports his or her position.

When two intelligent and experienced attorneys come up with diametrically opposed arguments, one of them has to be wrong! The value of settling includes reduced stress and legal fees, and acts as an insurance policy to minimize risk. Preparing your clients by getting them away from notions of “fair” and “justice” and towards the merits of a good business decision can make all the difference when you get to the settlement conference.

Read also “Why ‘Fair’ is the F-word in Divorce Negotiations

Consider hiring a private settlement conference judge.

You can stipulate to a private settlement conference. Judges are happy to clear up space on the MSC calendar. Your client will enjoy some real benefits:

  • You can select your judge and know he or she is experienced and a good fit for the case.
  • You can make sure your settlement conference is facilitated by someone trained in dispute resolution.
  • Meeting at a mediator’s office for a settlement conference is less formal and less stressful than court.
  • You are not constrained by the three hour time block for an MSC in court. You can take time to come up with a thoughtfully considered agreement.

Read more about private settlement conferences here.

For our STIPULATION AND ORDER FOR PRIVATE SETTLEMENT CONFERENCE (template), click here.

Read also Early Intervention: Why mediation early in a family law case can save a fortune in fees and stress .

 

New Case – Watch out if asking question in a deposition about a custody evaluation

New Appellate Case: Anke v. Yeager

There is a new appellate which came down from the Second Appellate District of the California Court of Appeal on February 4, 2019.  The case is Anka v. Yeager and can be found here https://law.justia.com/cases/california/court-of-appeal/2019/b281760.html.

You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:

“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.”  [Emphasis added.]

Yikes!

Sanctions for revealing the contents of a custody evaluation in deposition questions

In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation.  The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111.  The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.

When the sanctioned attorney appealed.  She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5.  However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt.  The trial court did not abuse its discretion by imposing the sanctions on the attorney.  The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family.  Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless.  The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.

Be careful about asking questions in a deposition about a custody evaluation!

So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance.  If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.

Big Change Coming in California Mediation Law in 2019 You Need to Know About

New Form Required by California Evidence Code § 1129